Thomas Potter, III

Thomas Potter, III

Burr & Forman

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Latest Publications


MSRB on Direct Purchases – Transparency Trumps Tower?

The Municipal Securities Rulemaking Board (“MSRB”) issued a concept release last month suggesting that market transparency trumps the direct Congressional prohibition against federal regulations requiring filing of...more

4/29/2016 - Disclosure Requirements MSRB Municipal Securities Issuers Municipal Securities Market Regulatory Oversight SEC Tower Amendment Transparency Directive

Public Mining of Securities Regulatory Big Data

An article in this weekend’s Wall Street Journal called for FINRA to make the database underlying its BrokerCheck® system (of reports on stockbroker registration and disciplinary history) more widely available for data mining...more

4/27/2016 - Big Data BrokerCheck Data Mining FINRA Popular SEC

SEC Affirms Sanctions on Stanford’s CCO

The SEC recently affirmed its ALJ’s ruling barring Alan Stanford’s former CCO from the industry and ordering monetary penalties of $260,000 together with $591,992 in disgorgement. The Commission held the CCO approved false...more

4/26/2016 - ALJ Chief Compliance Officers Civil Monetary Penalty Disgorgement Due Diligence False Statements Material Misrepresentation Sanctions SEC

TN Republican Party Challenges MA Pay-to-Play Rules

On April 12, the Tennessee Republican Party filed a petition in the US Sixth Circuit Court of Appeals, seeking to invalidate the SEC’s approval of new rules extending the MSRB’s long-standing “pay-to-play” prohibitions to new...more

4/25/2016 - MSRB Municipal Advisers Pay-To-Play Political Contributions Political Parties Political Speech Rule G-37 SEC

Fifth Circuit: Diversity Jurisdiction Over FINRA Award Based on Demand

The Fifth Circuit Bar Association’s summary reports: “Appellants were investors who suffered financial losses as a result of R. Allen Stanford’s Ponzi scheme. In their arbitration complaint, they sought $80 million in...more

4/15/2016 - Amount in Controversy Arbitration Diversity Jurisdiction Federal Arbitration Act FINRA Investors Section 9 Securities Litigation Stanford Ponzi Scheme

TN COA: Trustee Lacked Authority To Enter Pre-Dispute Arbitration Agreement

The Tennessee Court of Appeals recently held that a trustee’s signature of brokerage account agreement containing a pre-dispute arbitration clause did not bind the trust’s minor beneficiary. The Court held that an “all...more

4/14/2016 - Arbitration Beneficiaries Brokerage Accounts Mandatory Arbitration Clauses Trustees

Banking & Financial Services E-Note - March 2016

Within Burr & Forman's footprint, Florida, Mississippi, and Tennessee have passed statutes exempting Health Savings Account ("HSA") contributions from a debtor's bankruptcy estate. To date, the state of Georgia has not passed...more

3/30/2016 - BSA/AML Chapter 7 Consumer Bankruptcy Contract Waiver FCCPA FinCEN Foreclosure Health Savings Accounts Individual Accountability Investment Adviser Unfair or Deceptive Trade Practices White Collar Crimes Yates Memorandum

Corporate E-Note - February 2016

With the start of the 2016 tax reporting season, taxpayers making certain payments to a person or entity with a Tennessee address may find that Tennessee has added to the number of information returns they need to...more

3/1/2016 - Banking Sector Cybersecurity DOJ FIRPTA Individual Accountability Online Payments Reporting Requirements Special Needs Trust Survivor Benefits Unpaid Overtime Wage and Hour White Collar Crimes White-Collar Exemptions Withholding Requirements

Banking & Financial Services E-Note - February 2016

Cases decided recently in Florida and Illinois call into question one legal rule that some might have thought well-settled: a firstperfected security interest in collateral beats a later-perfected lien creditor's interest in...more

3/1/2016 - Banking Sector Bankruptcy Court DOJ DOL Foreclosure HOA Individual Accountability Mortgages Required Forms Unpaid Overtime Wage and Hour White Collar Crimes White-Collar Exemptions

Health Care E-Note - February 2016

The U.S. Department of Justice (“DOJ”) has a new view in cases involving corporate wrongdoing (including fraud and abuse, qui tam, and similar matters). And its gaze is focused squarely on rooting out and punishing the...more

2/19/2016 - 60-Day Rule Affordable Care Act ALJ CMS DOJ DOL False Claims Act (FCA) FLSA Health Care Providers Healthcare Fraud Home Health Care Medicare Part A Medicare Part B Minimum Salary Overpayment Recovery Time Limits Star Ratings Unpaid Overtime Wage and Hour White-Collar Exemptions

SEC OIG Cannot Substantiate ALJ Bias

In a January 21, 2016 Report of Investigation, the Inspector General for the Securities Exchange Commission found no evidence to substantiate allegations of pro-agency bias among SEC administrative law judges. The allegations...more

2/19/2016 - Administrative Proceedings ALJ Bias OIG SEC

Municipal Advisor Pay-to-Play Rules “Deemed Approved”

The MSRB’s Rule G-37 amendments applying pay-to-play prohibitions to Municipal Advisors and their third-party solicitors will become effective August 17, 2016....more

2/18/2016 - MSRB Municipal Advisers Pay-To-Play Proposed Amendments SEC

Obama’s FY2017 Budget Would Double SEC & CFTC Funding

White House officials this week said that President Obama’s fiscal 2017 budget will seek major increases in funding for Wall Street regulators in the near term, and proposes to double their funding by 2021....more

2/12/2016 - CFTC Federal Budget Investment Adviser Municipal Securities Market SEC

DOJ Focuses on Individuals in Corporate Wrongdoing

The U.S. Department of Justice (“DOJ”) has a new view in cases involving corporate wrongdoing (includingfraud and abuse, qui tam, and similar matters). And its gaze is focused squarely on rooting out and punishing the...more

2/11/2016 - Corporate Fraud DOJ Individual Accountability Whistleblowers White Collar Crimes Yates Memorandum

FINRA Arbitrations: Behind Claimant “Win” Statistics

FINRA reported that, for 2015, Claimants won about half of private securities arbitrations: 47% for all-public panel decisions; 45% for majority-public panels. A colleague and securities mediator, Dana Pescosolido, recently...more

1/26/2016 - Arbitration FINRA Securities Litigation

SEC Announces 2016 Exam Priorities

The SEC’s Office of Compliance Inspections and Examinations (“OCIE”) announced the agency’s priorities for this year on January 11. Commission staff will focus on three broad areas: Retail Investors, Market-Wide Risks, and...more

1/15/2016 - Analytics Financial Markets Industry Examinations OCIE Retail Investors Retirement SEC

FINRA’s 2016 Priorities: Fives on the Fifth

FINRA released its annual Regulatory and Examination Priorities Letter (so-called “Errico Letter”) on January 5. FINRA’s top five priorities: Among the also-rans, industry participants will recognize many perennial favorites,...more

1/12/2016 - Anti-Money Laundering Banking Sector Conflicts of Interest Corporate Culture FINRA

Annual Compliance Testing Should Re-Calibrate WSPs

As 2015 ended, FINRA fined Barclays Capital $13.75 million for mutual-fund switching and breakpoint supervisory failures that might have been avoided if that part of Barclay’s WSPs had been properly calibrated and/or part of...more

1/5/2016 - Barclays Broker-Dealer FINRA Mutual Funds Performance Reviews

SEC Approved Municipal Advisor Conduct Rule

On Christmas Eve’s eve, the SEC approved, without change, the MSRB’s proposed conduct rule for municipal advisors. Broadly, the Rule imposes: New Rule G-42 has been in the works since January, 2014 and the MSRB filed two...more

1/4/2016 - Fiduciary Duty Financial Markets MSRB Municipal Advisers Rule G-42 SEC

FINRA-DR Task Force Report on Securities Arbitrations

FINRA’s Dispute Resolution Task Force issued its Final Report in mid-December. The Report reflects the group’s consideration of wide-ranging issues affecting the nation’s principle dispute-resolution forum for broker-dealers,...more

1/4/2016 - Arbitration Broker-Dealer Case Management Dispute Resolution FINRA Task Force

FINRA Submits Revised Recruiting-Disclosure Rule to SEC

On December 16, FINRA submitted for SEC approval proposed Rule 2273 to require that brokers send customers an “educational disclosure” when changing firms. Although the proposal deletes a controversial provision that would...more

12/23/2015 - Brokers Disclosure Requirements FINRA SEC

Banking & Financial Services E-Note - December 2015

In an article published by Financial Advisor on December 8, 2015, Burr & Forman Associate Rhett Owens discusses a proposed rule change from the U.S. Department of Labor (DOL) regarding variable annuities (VAs) that’s set to...more

12/22/2015 - ATDS Banking Sector Bankruptcy Court Business Records FCC Financial Sector Hearsay Prior Express Consent TCPA Variable Annuities

MSRB Files New MA Pay-to-Play Rule with SEC

On December 16, the Municipal Securities Rulemaking Board (“MSRB”) filed with the SEC a proposed rule that would extend to municipal advisers the MSRB’s existing rule prohibiting “pay-to-play” practices and restricting...more

12/21/2015 - Campaign Contributions MSRB Municipal Advisers Pay-To-Play SEC

Broker-Dealer “Pay-to-Play” Rule Proposed to SEC

Last week FINRA proposed for SEC adoption a “pay-to-play” rule for broker-dealers engaged in distribution or solicitation activities with government entities.  The Proposed Rule is modeled after investment-adviser pay-to-play...more

12/21/2015 - Broker-Dealer FINRA Government Entities Pay-To-Play SEC

Supreme Court Reaffirms Arbitration Class-Waivers

The Supreme Court Monday re-affirmed the enforceability of class-waivers in arbitration agreements. The five-justice majority felt the need to rebuke the California courts for trying to end-run Federal preemption through a...more

12/18/2015 - Arbitration Agreements Class Action Arbitration Waivers DirectTV Preemption SCOTUS

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